APPLICATION TO THE MISPLACED
VAPORIZER SCENARIO
Here are the Piccolo Health LLP tips on how to handle the “mis-placed
vaporizer” situation:
1. Don’t jump to conclusions: In the above scenario, it is not clear
whether the vaporizer was needed for ingestion of medicinal
marijuana or was being used for ingestion of recreational
marijuana. Before you take any steps to discipline, you’ll need
to determine all the facts. It is not recommended that you call
the police immediately.
2. Hold the “evidence”: The vaporizer should be stored in a
safe place (like any lost item) in the event an employee comes
forward to re-claim it.
3. Notifying employees: If employers feel that it is necessary to
inform employees that such an item has been “found” and can be
retrieved, employers should keep in mind right now, marijuana
use is only legal if it is to be used for medicinal purposes.
4. Turn your mind to accommodation: Use of medicinal
marijuana for a disability-related purpose must be
accommodated. If the employee was using marijuana, it may
be time to have a discussion with who comes forward to claim
the vaporizer and ask if it is being used to ingest medically
prescribed marijuana. If the answer is yes, then the discussion
should also include talking about what accommodations
are necessary and set out the workplace parameters for use
(preferably having reference to a pre-established workplace
drug and alcohol use policy).
5. Possible current criminal implications: While it is unlikely
that an employee who is illegally using marijuana now will
come forward to claim the vaporizer, an employer must still
be prepared to deal with such a situation if it occurs. If an
employer determines that the vaporizer was not being used
for medicinal purposes prior to recreational legalization, the
employer should be reminding employees that drug use in the
workplace is prohibited (unless for medical use as referenced
above) and that they are engaging in an illegal activity which
is subject to criminal conviction. While owning/possessing a
vaporizer is not illegal and therefore finding that paraphernalia
in the workplace does not require an employer to contact the
police, if it were to be accompanied by/contained an illegal
substance, the police should immediately be notified.
6. Post-decriminalization: After the partial de-criminalization
law takes effect, there will be no need to have the police
involved in the event marijuana is found with the vaporizer,
but employees will need to be reminded of the company
policy on drugs and alcohol in the workplace which, if drafted
correctly, would prohibit the presence and consumption of
such drugs in the workplace except for medicinal use.
7. Potential policy breach: Since employers will be permitted
to have drug and alcohol policies which establish guidelines
relating to what is acceptable, the consequences of non-compliance
and who to speak to for additional information or
questions, employers should review their existing policies to
get ready for marijuana legalization.
PROACTIVE POLICY RECOMMENDATIONS
Any marijuana policy should:
■■ State that employees are prohibited from being impaired in the
workplace and that employees are expected to be fit for duty and
able to perform their duties safely and to the company’s expected
standards of performance for the duration of their work hours.
■■ State that employees are prohibited from possessing or using
non-medical drugs and/or alcohol in the workplace, including
during paid and unpaid breaks.
■■ Deal with the use of medical drugs in the workplace and can
stipulate that employees possessing medical drugs in the
workplace are expected to use them in a responsible manner
and solely for the health-related purposes for which they
are intended.
■■ Require that employees who use, and/or anticipate having to use,
medical drugs must communicate to management any potential
health and safety risk, limitation or restriction requiring
modification of duties and/or temporary reassignment, and
stipulate that such communication shall take place prior to the
performance of the employee’s work-related duties.
Unusual things can occur in workplaces. However, employers
can prepare for some of those things by instituting good policies
and practices, particularly in advance of any anticipated change in
legislation. While an employee’s forgetfulness in leaving a vaporizer
in the lunch room cannot be addressed by a policy, it is recom-mended
that employers review their drug and alcohol policies to
ensure that they account for both recreational and medicinal mar-ijuana
use. n
Patrizia Piccolo is the partner and co-founder of Piccolo Heath LLP.
conflict resolution
USE OF MEDICINAL
MARIJUANA FOR A DISABILITY-RELATED
PURPOSE MUST
BE ACCOMMODATED.
gresei / 123RF Stock Photo
44 ❚ OCTOBER 2018 ❚ HR PROFESSIONAL
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